Chief Justice Warren E. Burger: We will hear arguments next in Swisher against Brady.

Mr. Nilson, I think you may proceed when you are ready.

Mr. George A. Nilson: Mr. Chief Justice and May it please the Court.

I am here seeking reversal of the opinion of the Three Judge Federal Court below which held that Maryland’s juvenile justice system of delinquency hearings before masters with review available from the Juvenile Court judge by way of exception offends the constitutional bar against Double Jeopardy.

Under Maryland’s present statutes and rules governing Juvenile Court proceedings, most of the more populous local jurisdictions in Maryland as well as some of the rural counties employ masters for the purpose of conducting various hearings within the Juvenile Court system.

The utilization of these masters which also characterizes the juvenile justice systems of approximately 34 other states is designed both to assist the Circuit Court system in dealing with the extremely heavy caseload in the juvenile area and also to provide for the involvement in the process of persons who by virtue of their interests, expertise and permanent assignment to the Juvenile Court system can bring to bear in the disposition of juvenile clauses a familiarity with and sensitivity to the special needs and problems of juveniles charged with committing acts in violation of the state’s criminal laws.

Under Maryland’s system, the Juvenile Court judge hears originally all petitions for waiver of jurisdiction to the Criminal Courts for trial as adults and also generally hears originally the more aggravated charges such as murder, rape or armed robbery as well as cases where exceptions to a master’s proposal are anticipated in advance of the proceedings. With certain other limited exceptions, other delinquency cases including arraignment, detention, adjudication and disposition, maybe assigned for the hearing of evidence to one of the full time masters employed by the Court.

Under both the statute and under Maryland Rule 911, when a master conducts an adjudicatory and a disposition hearing, he is required to transmit his proposed findings of fact, conclusions of law and recommendations and proposed disposition orders to the Juvenile Court judge within 10 days of the conclusion of the disposition hearing.

Unknown Speaker: Were there two judges and seven masters in Baltimore County?

Mr. George A. Nilson: In Baltimore city, there is one judge and seven masters.

That is correct.

In the other counties, the ratio, more closely approximates one to one.

The figures both as to judges and masters I think are given in our brief.

Both the statute and the rule provide that these proposed findings, conclusions and recommendations do not constitute orders or final action of the Court and that final adjudication and disposition orders are only entered by the Juvenile Court judge following his consideration of any exceptions which may be filed within five days or if no exceptions are filed, following his concurrence in the master’s recommendations if he agrees with them.

Justice William H. Rehnquist: What would happen under Maryland Law if the master simply by mistake failed to transmit his findings to the Juvenile Court judge?

Could the state go out and incarcerate the juvenile on the basis of the master’s finding?

Mr. George A. Nilson: He could not.

There would be no order of the Court on the basis of which the state could act.

There would have been no disposition of that case, if there had been no transmittal of the findings and no order entered.

The only officer in the Court system with the power to enter an order, disposing of the case and providing for a disposition of that juvenile is the judge.

Now, in terms of the submission of recommendations and findings while as I have just indicated the rule and the statute do require that those recommendations and the findings of fact be transmitted to the judge, that is frequently waived by the parties and this is pointed out on a number of occasions in the appellee’s brief.

That occurs in situations where the parties essentially are acquiescing in the master’s proposed disposition of the case which he announces at the hearing and they will say to the master -- Pardon me.

Unknown Speaker: Still an order is entered signed by the judge in those cases?

Signed by the judge?

Mr. George A. Nilson: That is correct.

While understandably a few recommendations are disturbed by the Juvenile Court judge in the absence of exceptions by either the state or the juvenile, the judge does have the authority sue sponte to either remands the master for further hearing to himself hold a further non-evidentiary hearing or to himself hold a supplemental evidentiary hearing if both the state and the juvenile agree to the taking of additional evidence.

This case focuses on the Double Jeopardy implications of the review of the master’s recommendation upon the filing of exceptions thereto by the state.

Appellees argue that regardless of the basis for the exceptions, and regardless of whether additional evidence is heard by the judge with a consent of all parties including the juvenile or whether the judge's review is solely on the record, the juvenile is placed in jeopardy at the evidentiary, adjudicatory hearing before the master that, that jeopardy concludes upon the filing of the master’s recommendations and that any consideration given by way of review of the Juvenile Court judge upon the filing with exception by the state to a master’s recommendation of a non-delinquency finding, constitutes a new and impermissible second jeopardy.

Obviously, the state disagrees with all of the elements of that position taken by the Appellees.

Chief Justice Warren E. Burger: What consequence can flow from the master’s action before the judge has acted on it?

Mr. George A. Nilson: In a situation where a master has adjudicated that the child committed an act and is proposing detention of the child for example, there maybe certain consequences with respect to a temporary continuation of the detention that is already in place pending the disposition of the matter but no separate --

Chief Justice Warren E. Burger: No final disposition.

Mr. George A. Nilson: No final disposition whatsoever can flow from that recommendation of the master.

Chief Justice Warren E. Burger: Are they usually in custody or not or can you not generalize?

Mr. George A. Nilson: I think, in the majority of cases, they are not but I am not certain I could generalize on that.

Justice Thurgood Marshall: Coupling along another thing, it is the same judge involved in the counties and in the cities.

Mr. George A. Nilson: The different judges involved.

Justice Thurgood Marshall: No I mean in the Baltimore city, you have got one?

Mr. George A. Nilson: That is correct.

There is a specially assigned juvenile judge.

Justice Thurgood Marshall: So after the master’s report, it goes back to the same judge?

Am I right?

Mr. George A. Nilson: All master’s reports go to a single judge, that is correct.

Justice Thurgood Marshall: In this case, all we are talking about is one judge.

Mr. George A. Nilson: That is correct.

I think, Judge Hammerman was the Juvenile Judge in Baltimore city for some eight years and then Judge Karwacki and there is evidence from both of those two judges in the record.

The Appellee’s initial attack on the Maryland system culminated in the decision of the Maryland Court of Appeals in matter of Anderson in 1974, because there are several prior proceedings in this case relevant, I thought it best to just describe them briefly to the Court.

In that case, certain juveniles challenged the provisions of what was then Maryland Rule 908 and is now 911, which will authorize the state to file exceptions to a master’s recommendation of non-delinquency contending there that the provision for a de novo hearing before the Juvenile Court judge violated applicable Double Jeopardy principles.

At that time the rules did permit a de novo hearing upon exception by the state.

Assuming in correct anticipation of this Court’s subsequent decision in Breed v. Jones the Double Jeopardy principles apply to adjudications of delinquency in Juvenile Court.

Maryland’s Court of Appeals rejected the challenge to the rule permitting exceptions by the state on the grounds that the juvenile master is a ministerial and not a judicial officer that under the Maryland Constitution he is entrusted with no part of the judicial power of the state, that his recommendations are only that and do not become binding unless and until approved by the judge and that accordingly, the hearing before the master is not such a hearing that places a juvenile in jeopardy at the time that hearing occurs.

Following that decision, review of which was denied by this Court for want of a substantial federal question, the Appellees file this case and a companion habeas corpus petition in the US District Court for the District of Maryland.

The habeas cases were heard and decided first resulting in an opinion in June of 1975 in Aldridge v. Dean concluding that the ability of the state to file exceptions to the master’s finding and to obtain a de novo adjudicatory hearing before a judge again under the former version of the Maryland rule, violated the rights of juveniles not to be twice placed in jeopardy for the same offense.

Immediately following the decision of the habeas cases, the Maryland Court of Appeals adopted amended Juvenile Court rules which explicitly confirmed the holding in matter of Anderson that the master’s recommendations are proposed only and are not binding or final orders of the Court.

The new rules also denied to the state when it takes exception to the master’s recommendation, the opportunity to adduce any new evidence before the Juvenile Court judge without the consent of the juvenile.

Moreover the Juvenile Court statute effective July 1, ’75 required for the first time that proceedings before the masters be recorded, thus making possible meaningful review by the Juvenile Court Judge on the record developed before the master.

Appellees then filed a supplemental complaint in this case alleging the violation of Double Jeopardy not withstanding the changes in the rules, additional evidence was introduced and the opinion below followed in September of ’77.

Justice Thurgood Marshall: Mr. Attorney General, one point along the other one I asked, if the judge tries the case without the master and says I find no evidence of guilt and I acquit and I release or whatever the ruling is, there is nothing the state can do?

Mr. George A. Nilson: Well, there is nothing further within a state court system that is correct.

Justice Thurgood Marshall: But if the master, I think that is a point they will decide and maybe, if the master recommends that he be released, then the state can file the exception?

Mr. George A. Nilson: The state can file exceptions with the Juvenile Court judge, that is correct.

Unknown Speaker: That reason that your answer to my brother, Marshall’s first questions, there is nothing that state can do if the judge finds no delinquency or whatever it is, as you said it is a matter of state law, it is a matter of constitutional Double Jeopardy Law is it not?

Mr. George A. Nilson: That is correct.

Unknown Speaker: The juvenile could not be subjected to jeopardy before that judge for the same offense again.

Mr. George A. Nilson: That is right, the state could not then take that juvenile for example and do what was done in Breed v. Jones which is to attempt to try them in the Ad-Hoc Court, or anywhere nor do I think they could go up and attempt to seek reversal and bring it back down for retrial or reconsideration back in the Juvenile Court system.

But what we have got here is confined entirely within the Juvenile Court system at the lower court level and we would submit essentially is one continuous proceeding.

There are two parts to the state’s argument on the Double Jeopardy point.

The first is that essentially, jeopardy does not attach at the hearing before the master and the basis for that is that he is not the trier of fact with authority to enter a judgment of conviction or acquittal or the equivalent thereof.

Unknown Speaker: What point do you fix its attachment?

Mr. George A. Nilson: Jeopardy would attach at the moment that that case filed, that the record in the case, that the evidence, that the recommendations of the master are given to the Juvenile Court Judge.

Unknown Speaker: Even before he signs an order.

Mr. George A. Nilson: That is correct.

Once that is before the judge, then essentially evidence is before the trier of fact, that officer who has authority to enter an order of guilt or innocence or delinquency or non-delinquency in a case.

Justice John Paul Stevens: But then General Nilson, is it your view that the state could complete its presentation of evidence before the master and lose and then instead of finding exceptions, you will say, I think we will start over and get some more evidence?

Mr. George A. Nilson: When you say lose --

Justice John Paul Stevens: The master make a recommendation of no finding of delinquency and then instead of taking exceptions, I take it your view is the state could say well let us go back and get some more witnesses and have another hearing.

Mr. George A. Nilson: That is I suppose theoretically possible under the port of argument that says jeopardy is a not attached until it gets to the judge, that is correct and I think the only way to respond to that in terms of suggesting that that might not be permissible is that there you would have the state interrupting a continuous process which is established and then that continuous process moves from the master to the judge.

The state on its own initiative and working against that continuous process would be interrupting it and taking it back and starting over again.

I can see even under the first theory that argument being made to the effect that that would constitute subjecting in to Double Jeopardy.

Under the State's second theory of the case, then I think clearly that would constitute Double Jeopardy because he would not longer be within the continuous process.

He would have interrupted the continuous process and the second part of our argument essentially begins with an assumption that contrary to the Maryland Court of Appeals, this Court holds that jeopardy begins to attach at the hearing before the master.

Then the State’s position is that it is a single jeopardy as long as you stay within that continuous process on through the stage of the case where the judge enters the order but that if you interrupt that continuum then you would be violating Double Jeopardy under the state's second -- .

Justice Thurgood Marshall: I have a little trouble and maybe a procedural outright.

When the juvenile is brought in before the Juvenile Judge, why is he in jeopardy then?

Mr. George A. Nilson: At what stage, Mr. Justice Marshall?

Justice Thurgood Marshall: The beginning.

As I understand you said the judge can try them then and there, right?

Mr. George A. Nilson: Typically, he would not be brought before but If he was brought before the judge for an adjudicatory hearing directly, yes, but typically that does not happen.

Typically, the juvenile does not come into contact with the judge at a hearing until the final stage, except in the cases that I mentioned earlier which is a waiver hearing where the issue is whether jurisdiction should be laid with the Criminal Court, whether it is an aggravated offense or it is a situation where they anticipate in advance that exceptions would be taken to a finding of the master but otherwise --

Justice Thurgood Marshall: He is just told to appear before the magistrate.

Mr. George A. Nilson: That is correct.

Generally speaking, he never appears before the judge.

Justice Thurgood Marshall: Does the magistrate ask him if he is guilty?

Is the magistrate to ask him did you do that?

Mr. George A. Nilson: It is the master who presides over the taking of evidence and that would involve testimony put on by the state’s attorney and testimony put on by the juvenile which might include testimony by the juvenile.

Thirdly, and I think the third argument of the state really relates to the first two is that even if a system such as that embodied in Maryland’s Juvenile Court statutes and rules, would be viewed as violative of Double Jeopardy if applied to trials in the Criminal Courts, special consideration of the need for some informality, flexibility and experimentation in the juvenile justice setting should lead to a conclusion that the entertainment by a judge at exceptions filed by the state as we have here does not violate principles of fundamental fairness and is not contrary to Double Jeopardy prescription in the special context of Juvenile Court proceedings.

Chief Justice Warren E. Burger: In Maryland, did you ever have it -- was there any period when rather than having masters take this first step and make the preliminary inquiry, this was done by interviews at the hands of trained, social and behavioral professionals who were not lawyers?

Mr. George A. Nilson: That is still done to a considerable extent, there is a very elaborate what we call an intake process.

Chief Justice Warren E. Burger: Was there a time when it went directly from without the intervention of a master, from this professional non-lawyer however to the Juvenile Judge?

Were there reports?

Mr. George A. Nilson: I suspect that there was a time when that happened.

Masters have not been employed forever in Maryland.

I think they date back to the middle ’40.

Chief Justice Warren E. Burger: There is a certain time in many states even today is it not if you know?

Mr. George A. Nilson: The employment of intake officers in these mode, it is common in many states and as I said it is used frequently in Maryland and there are many cases that are disposed off by these intake officers who are not lawyers, not masters, not judges before the case ever gets up to even the master stage or the judge stage.

A very large percentage of today’s high volume of juvenile matters are disposed off through that intake process and thus never get before for any kind of an adjudicatory hearing before a master or a judge.

The state’s first argument on the question of when jeopardy attaches is both set forth in the first part of our brief and is reflected as I indicated before in the Maryland Court of Appeals decision in matter of Anderson.

It represents the approach adopted by several other State Courts which have considered this issue.

Rather than attempt to fully restate that portion of our argument, I would like to simply focus on the implications of this Court’s decision in Breed v. Jones relative to that particular argument and this particular case.

The holding in Breed was of course limited to the proposition that once a Juvenile Court finds that a juvenile has committed acts that violated Criminal Law, the juvenile has been put in jeopardy and cannot thereafter be waived to the Adult Criminal Court system for trial because such a criminal trial would constitute a second and impermissible jeopardy.

In its opinion in Breed, this Court made no distinction between the respective roles of Juvenile Court referee and Juvenile Court judge in the California proceedings there at issue but referred throughout to the actions of the Juvenile Court.

Under the California system, dispositions proposed by referees do not require the affirmative concurrence of the Juvenile Court Judge but become final upon the failure of the judge to disturb them within 20 days following the hearing before the referee.

This Court did not consider or discuss in Breed, the relative roles of the referee and the judge since there was no need for it to do so.

Appellees have correctly pointed out in their brief that an examination of the record in Breed indicates that the adjudicatory hearing which occurred in that case was in fact held before a referee rather than a judge and from this, they have argued that the clear implication, if not the expressed holding of Breed is that jeopardy attached in that case at the moment evidence was first presented to the California Juvenile Court referee.

While this Court could so conclude, if and when expressly presented with a question, we submit that the question was not presented or decided in Breed.

In essence, it is our position that the question of when jeopardy attaches in a Juvenile Court proceeding should be answered as I indicated earlier by holding that it attaches when evidence is first presented to that officer of the Court who has the authority to decide factual questions and to dispose off the case by a finding of delinquency or non-delinquency.

Whatever the precise point in time at which jeopardy attaches in the California system might be, we submit that the point in time at which jeopardy attaches in Maryland is when the recommendations of the master are presented to and considered by the Juvenile Court judge.

The fact that the master is previously presided of evidentiary hearing and formulated his own proposed findings should not have to be held to have accelerated the point in time at which jeopardy attaches.

Surely, the mere fact that evidence is presented before the master should not result in a holding that jeopardy attaches when that occurs.

What is critical is the presentation of evidence to the trier of fact.

The second part of the argument as I indicated before is premised on an assumption that the Court should hold that jeopardy did begin to attach at that first hearing and it is our position that that the limited review by the Juvenile Court judge of the master’s recommendation upon the filing an exception at that point does not constitute a second and impermissible jeopardy.

When that exception has been filed, there has been at that point in time no adjudication of acquittal or its equivalent such as would constitute a termination of the initial jeopardy.

Regardless of the subjective perception and sense of relief that the juvenile upon hearing the master’s proposed or recommended disposition of the case in his favor may have, the fact of the matter is that the master’s recommendation is nothing more than advisory of the Court and is not final unless and until approved by the Juvenile Court Judge.

The correctness of that assertion is not altered in the least by the fact that master’s recommendations are generally adopted by the judge in the absence of exceptions by the parties.

Appellees in their brief have made a great deal out of the fact that the judges approve the vast majority of master’s recommendations that are presented before them and move from that to argue that the judges are a mere rubber stamp.

In the first place, I think it is terribly important for this Court to understand several things about the facts that the Appellees have brought to bear in dealing with that.

Number one, they are talking about situations where no exceptions are filed to the master’s recommendations.

Therefore, it is natural that the judge would be inclined to accept and approve most of those recommendations.

Also, in the bulk of those cases, both parties have even waived the requirement that the master prepared detailed written findings to submit to the judge.

I think it also must be borne in mind that the figures and the information in the record with respect to the amount of time spent by the Juvenile Court Judge in reviewing master’s recommendations predate the current rules.

The testimony of judge Karwacki which is included in the Appendix filed in this case indicates that the judges do do a conscientious style of reviewing those cases that are presented to the judges with written recommendations from the masters and do on occasion listen to the recordings which are now made of the testimony and the proceedings before the master.

Maryland rules provide that prior to the time that the judge enters an order either the state or the juvenile may note an exemption to the master’s recommendation and have the matter considered by the judge before a final disposition of the case.

When a juvenile notes an exception, the rule provides that he may elect either a hearing de novo or a hearing before the judge on the record established before the master.

When the state notes an exception, the controlling rule now assures to the juvenile his right to insist if he wishes that the judge consider the case solely on the basis of the record which was made before the master and which caused the master to recommend in his favor.

Alternatively, additional evidence may be presented to the judge but only if he considers it relevant, and if both the state and the juvenile consent to its introduction.

Thus, the juvenile is able to prevent the state from presenting evidence which it did not present before the master or from retrying its case again before the judge.

This is not a situation where there are separate proceedings before different tribunals.

Each of which can result in an adjudication for or against the juvenile.

There is only one proceeding before the Juvenile Court which consists of the presentation of evidence before and the issue of recommendations to the Court by the master.

The final determination of the matter on behalf of the Juvenile Court by the judge either following his consideration of any exceptions filed or following his concurrence in the recommendation of the master in the absence of exceptions, if he chooses to concur.

The state's contention that the proceedings in Maryland Juvenile Courts are continuous in nature and involve only a single jeopardy, does not require this Court to now adopt the type of continuing jeopardy theory articulated first by Mr. Justice Holmes in Kepner v. United States.

Holmes in continuing jeopardy view clearly involves situations where the criminal justice process is punctuated by adjudications of innocent or guilt and thereafter proceeds to a contrary determination or a subsequent trial with the potential for producing another adjudication.

Here, the process is not so punctuated because the Maryland rules provide that the first and only adjudication cannot and does not occur until after the completion of the entire process when the Juvenile Court judge enters an appropriate order.

When the judge entertains an exception filed by the state to the master’s recommendation, he does so not in the context of a separate and distinct proceeding but as the final stage in a single continuous proceeding.

Unknown Speaker: But he can remand the master, I take it?

Mr. George A. Nilson: The only situation under which a remand to the master is provided for is where the judge disagrees with the master’s recommendation on his own initiative.

Remand is not provided for in the situation where the matter goes to the judge on exception.

That particular Maryland Rule only provides for a hearing before the judge.

Unknown Speaker: So when it gets to the judge on exceptions, the matter is voted up or down right there?

Mr. George A. Nilson: That is what the rule contemplates and it is voted up or down on the basis of a non-evidentiary hearing when the state is the accepting party.

Non-evidentiary hearing unless the juvenile and the state both consent to the introduction of additional evidence.

Unknown Speaker: If the state, it does the accepting and the judge finds in his favor on his exception, the show is over?

Mr. George A. Nilson: That is correct.

Unknown Speaker: There is no sending back for a new trial.

Mr. George A. Nilson: There is no sending back for another trial before the master at that point, the state has used up what I would submit as the one card that it had available to it in the first place.

That is that single continuous proceeding.

To hold that Breed v. Jones must be extended so as to bar the state from completing the process would represent, we submit an unwarranted extension of Double Jeopardy principles within the juvenile justice system and unless there are further question at this point, I would like to reserve the balance for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Smith?

Argument of Peter S. Smith

Mr. Peter S. Smith: Mr. Chief Justice and May it please the Court.

Let me state what I think is the heart of this case.

A child is tried at a trial and we will talk about that in a minute, because it is a real trial, he is found not guilty. Witnesses testify, cross examine, arguments, motions, legal points, exhibits, the whole bit, all pursuant to the procedural requirements that have been outlined by this Court in Gault, Winship and to some extent in Breed, although the first two obviously are the most relevant.

At the end of it, the master considers his decision and he reviews the facts and the law and he says, Johnny, I find you not guilty.

Johnny turns to his mother and smiles and they go out of the courtroom and everything is all finished.

Justice William H. Rehnquist: Mr. Smith, you say the master says I find you not guilty.

I got the impression from the state’s counsel, the master makes a recommendation to the Juvenile Judge.

Mr. Peter S. Smith: Well, both of those statements that you made, Mr. Justice Rehnquist can be reconciled and perhaps it goes to the real heart of the case because the theory of it is that a paper goes to the judge which is a recommendation.

Unknown Speaker: I want to be consistent with this procedure though if the master did not say, I find you not guilty but said Johnny, I am going to recommend to the judge to find you not guilty.

Mr. Peter S. Smith: But he does not do that.

Unknown Speaker: Well let us suppose he did, would you be making a different argument?

Mr. Peter S. Smith: No, I would not be making a different argument.

Unknown Speaker: That it is not really very relevant.

Chief Justice Warren E. Burger: Is the case going to turn on whether you have a loud mouth, large headed master?

Mr. Peter S. Smith: Not at all.

Chief Justice Warren E. Burger: You seem to suggest though because if he presumes to pronounce a judgment you are saying that makes him a judge, and therefore creates jeopardy.

Mr. Peter S. Smith: I do not think it turns on that at all.

What I think it turns on is what in fact actually happens.

At the conclusion, the record incidentally, supports although I am not saying that it is by any means critical to our ultimate position.

Nonetheless, the record supports the characterization of what the master says that I just indicated.

Chief Justice Warren E. Burger: Are you representing to the Court that all seven magistrates at the conclusion of a hearing, where they are going to recommend under the procedure no further proceedings, that they all make the announcement of you are not guilty?

Mr. Peter S. Smith: Well, three masters testified in this, Mr. Chief Justice and one master who put in the record a stipulation of evidence indicated that he completely agreed with and he read the testimony of this first master and he said that he agreed with it and that in his experience as an assistant public defender, before he was appointed to master, he observed this going on in every single master’s courtroom so I think the answer is the record does support that it happens in every courtroom.

Justice Thurgood Marshall: Let me say non-delinquent.

There is no finding of the guilt, did they start that?

You do not find the child guilty or not guilty.

It is delinquent or not delinquent.

Mr. Peter S. Smith: Technically in the statute of course, it is delinquent or not delinquent.

What I am saying is the record clearly supports this that the master explains it in the typical criminal lingo because obviously a child is not going to understand the words delinquent or non-delinquent.

Now after the decision, after without trying to assume the conclusion after the master makes the statement and the child and his parent leaves, the state's attorney decides that he was not satisfied with the result.

He thought the child should have been found guilty and so what does he do, he files an exception and he then goes, takes out exception and files it with the clerk and there was then another hearing before the judge.

Now, it used to be that it was de novo.

Now it is restricted under the amendment that was made.

It was on the record and we deal in our brief of the fact that we believe that distinction makes no difference under this Court’s decision in the Jenkins case and also I might say in the Kepner case of 1903 and so what happens there is a new trial.

A new fact finder and this time, a new fact finder whether it is with new evidence which is what the statute provides or the same evidence or at least the tape recording of the evidence floor master. That judge then decides whether he believes the child is guilty or not guilty.

Justice William H. Rehnquist: What if the foreman of a grand jury after a grand jury had deliberated, saw the defendant standing outside the grand jury room, and just came out and said congratulations we have just found you not guilty.

Do you think that the defendant could plead that in bar to indictment rendered by another grand jury when he was brought to trial before a Court of competent jurisdiction?

Mr. Peter S. Smith: Absolutely not.

Justice William H. Rehnquist: Doesn't it really not make some difference here whether the master’s recommendation is something on which the state could base punishment of the child or whether it is just a recommendation to a judge.

Mr. Peter S. Smith: Well, but the State does base punishment of the child on it.

That is the whole point.

Chief Justice Warren E. Burger: Before the judge has signed any piece of paper.

Mr. Peter S. Smith: Well, in response to the question you asked earlier Mr. Chief Justice, the record indicates that all the time children who are before a master and the master finds them guilty and decides that it holds a disposition hearing and says they want to go to the training school, out the door they go to that training school that day and five days later or thereafter, but at least five days later, when the judge signs that order, that child is very much in the training school and I might say that if he is found not guilty that child is very much at home.

In that sense, there is real substantial power that the master exercised.

Chief Justice Warren E. Burger: Would you not suggest that the detention of the child before the master’s hearing is unconstitutional?

Mr. Peter S. Smith: No.

Chief Justice Warren E. Burger: Why does it become somehow unconstitutional or illegal afterward in the interim between the master’s recommendations and judge's action.

Mr. Peter S. Smith: I am not suggesting that it is unconstitutional or illegal.

All I am saying is that that in fact happens because you asked the question to Mr. Nelson earlier, getting at the point of what in fact happens to that child between the time that the master’s hearing ends and when the recommendation goes to the judge.

All I am saying is that in that interim time what happens is that in fact it is implemented.

If the master found the child guilty and says he should go to a training school, off he goes.

If the master says, “No, I find you not guilty,” he goes home.

Again, I do not suggest that that decides the ultimate attachment of Double Jeopardy question, but certainly it gives a little background in terms of the reality.

Unknown Speaker: Could a juvenile found to be delinquent by master and when the State agents come and say all right now you are going off to the training school and you would say, “Wait a minute.

I filed exceptions to the Master’s recommendation” then would he still go to the training school.

Mr. Peter S. Smith: Assuming the child files an exception.

Unknown Speaker: After a finding of delinquency.

Mr. Peter S. Smith: If the child in that—first of all, he has to file in that very Court room in that moment.

Now, he could, I mean, his lawyer could hand the masterpiece paper and say, “All right…

Justice Potter Stewart: And if he did that would he still go off the training school?

Mr. Peter S. Smith: At that point, it would be up to the State to decide whether it wished to request attention between the time that that piece of paper was filed and when the hearing is held before the judge.

If the state wishes to request attention then the master can give it and I might say --

Justice Potter Stewart: Would he commence serving, wherever confinement, in whatever place the master had recommended as a punishment for --

Mr. Peter S. Smith: He would not commence serving in the sense of the beginning of a post conviction sentence.

Justice Potter Stewart: He might be detained just as a person that can be detained after prosecuting, the attorney files and information and designate bail.

Mr. Peter S. Smith: That is true although I do not know that it is essential difference Justice Stewart because…

Justice Potter Stewart: Now what we have to do is whether or not this is a final judgment.

Mr. Peter S. Smith: In Maryland and most states the child, whether it is detained or committed it is in pursuant to an indeterminate commitment at least it is in Maryland and he goes to the same training school and he maybe in one college if it is detention and another college if it is commitment.

It seems to me that…

Justice Potter Stewart: But can he say look I am not ready.

You have no right to make me begin serving the recommended period of confinement because I have taken an exception to the finding of delinquency.

Mr. Peter S. Smith: Well, he cannot say that for two reasons one because…

Justice Potter Stewart: He can take an exception?

Mr. Peter S. Smith: He can take an exception, but he cannot say the first for two reasons one because there is no such thing as a recommended period of commitment because it is indeterminate.

Justice Potter Stewart: That is what is the recommended period.

Mr. Peter S. Smith: All right.

Justice Potter Stewart: You are committed with a training school until you are 18 years old.

Mr. Peter S. Smith: The child can say, if Your Honor Please, when I go to the training school, I want everybody at the training school to know that I am there in detention rather than commitment and certainly the order will say detention rather than commitment.

To that extent the child can make that allegation, but the child cannot say I am sorry.

I do not want to go anywhere because you have to wait till the judge does something.

Chief Justice Warren E. Burger: Take a child who was not been in detention but has been at home and a considerable number are released to the custody of the parents is that not so or to a foster home?

Mr. Peter S. Smith: That is correct.

Both pre and post trial.

Chief Justice Warren E. Burger: Now, the master that makes his recommendations, are you telling us that the child is immediately plucked out of his home and taken to a detention center or to not only be done as the Attorney General’s office informed us after the judge has signed something.

Mr. Peter S. Smith: He is plucked out of his home and taken to the detention center absolutely.

Justice Thurgood Marshall: But it is not this case.

Mr. Peter S. Smith: As a matter of fact, there are nine plaintiffs in this case, I am trying to think of whether in each of these case they were filed not guilty and there was not any request by the state to detain him pending as far as I can recall so it is true that is not this case.

Justice Potter Stewart: Your complaint, your grievances, in this case it is not with a situation where the person is found to be delinquent by the master but rather when he is found to be non-delinquent by the master.

Mr. Peter S. Smith: Exactly, now if I could just get into the law.

Justice John Paul Stevens: Before we get to that because I still am a little puzzled by your answer to Mr. Justice Stewart earlier, if there is a finding of delinquency and if the child files exception is there automatic taking him into custody or does the state have to request custody.

Mr. Peter S. Smith: If he has found delinquent then --

Justice John Paul Stevens: He makes -- promptly file exception.

Mr. Peter S. Smith: Alright, under the present procedure in Baltimore City and it appears a slight doubt, but we believe that the rule is fairly clear of the statewide rule on this.

An exception is not to be taken if the delinquent act is sustained, there's bifurcation between the delinquent act which is the penal act and the delinquent child which is does he need care, treatment and supervision.

In Maryland, you are not allowed under Court rule to take an exception until after the disposition hearing.

The disposition hearing may take place immediately after the trial.

Justice John Paul Stevens: If the disposition hearing does not take place immediately, he will not be taken to a home right away.

Mr. Peter S. Smith: If the disposition hearing does not take place immediately after the trial then an exception could not be filed.

Justice John Paul Stevens: He would not also go onto a home.

Mr. Peter S. Smith: Well, what then happens depends on what the states and the master’s desire is.

The state may say or the master may say and they frequently do that pending disposition hearing, I wish the child to be in detention and if the master so finds he is in detention and the master enters an order and I would like to point this out --

Justice John Paul Stevens: May the prosecutor say precisely the same thing at the beginning in the hearing.

Mr. Peter S. Smith: At the beginning of the disposition or the trial?

Justice John Paul Stevens: At the beginning of the whole proceeding.

Mr. Peter S. Smith: And when you say the same thing --

Justice John Paul Stevens: Can the prosecutor by the same procedure and cause the child to be detained during the hearing as well as immediately after it?

Mr. Peter S. Smith: Yes, if you mean that hearing goes on for more than a day or morning, absolutely.

Justice John Paul Stevens: So but then really what is the greater -- you were expressing the significance of the masters finding a delinquency.

It does not seem to me that that is the scene if that is necessarily controlling in the case where exceptions are taken.

Mr. Peter S. Smith: My point is this, the significant fact, I believe is that the master conducts what is conceded to be under Maryland Law and what has been found to be by two Federal District Courts, I might say, a full trial then the child is found guilty or the master says you are guilty or not guilty as the case maybe.

Now, the question is this, has he been in jeopardy during that period when he is before that master?

Justice Thurgood Marshall: It could have been that the master sends him.

Mr. Peter S. Smith: Again, we get involved in…

Justice Thurgood Marshall: Could the master find him delinquent

Mr. Peter S. Smith: Again we get involved in the terminology problem.

Justice Thurgood Marshall: Could the master sign a piece of paper saying that this man, this child is delinquent?

Mr. Peter S. Smith: He does, he just does not sign the order.

Justice Thurgood Marshall: No, he does not as I understand he recommends that the judge find him delinquent.

Mr. Peter S. Smith: The master until 1975 --.

Justice Thurgood Marshall: Does master commit him to training school until his of age?

Mr. Peter S. Smith: By signing an order, no, he may not sign the order.

Justice Thurgood Marshall: That was not my question, can he do it?

Mr. Peter S. Smith: Yes.

Justice Thurgood Marshall: How?

Mr. Peter S. Smith: He does it by stating that he is going to do it and if perfunctorily really approved by the judge.

Now, I know that one of the difficulties with this case, let me be very frank with you.

I do not want to predict my own doom here. But there have been 15 judges who have heard this case so far, five trial judges and 10 appellate judges, and all the appellate judges have ruled against us and all the trial judges have ruled in our favor including the initial Juvenile Court Trial Judge and I think I may have an idea as to why that has happened because it takes a little bit of time to live with this case and realize the difference between whatever may have been the conceptions at one time or whatever may now be the conceptions of a master in chancery and a master in civil areas versus what is happening in this case.

Justice William H. Rehnquist: Judge Winter is an appellate judge, is he?

Mr. Peter S. Smith: He sat as a Trial Judge though in this case.

I was referring to judge in his capacity as trial judge for that moment.

Now, when you look at all the facts in this case, you eventually, I believe have to come to the conclusion that however you dress it up, it boils down to the fact that a child in a big urban Court system such as Baltimore with one judge and seven masters, where the masters hear 90 percent of the cases, they are tried in front of masters for the most part and there are full and complete trials.

Now, there are only two questions that then have to be asked legally to determine whether or not that offends a Double Jeopardy clause.

Chief Justice Warren E. Burger: Supposed you had three judges for each master in Baltimore, would that change the constitutional situation?

Mr. Peter S. Smith: Not if there was a full trial in front of a master, not at all.

Chief Justice Warren E. Burger: By that, do you mean he must hear a de novo not do it on the record?

Mr. Peter S. Smith: I said full trial before the master.

In other words, in my view, if there was full trial before the master that does not change the result that if it then goes before later on that it is not Double Jeopardy.

Chief Justice Warren E. Burger: Suppose the record showed that the spent an average of three hours on each set of recommendations where there were exceptions.

Mr. Peter S. Smith: Of course, if there are exceptions Mr. Chief Justice, let us say there is an exception by the child normally that is going to be a de novo hearing.

It can be on the record, but normally the child will request a de novo hearing, but that takes it wholly outside of the framework of this case because it is like the United States where, though the child did not like what he got and he sought a new trial.

If it is the other way around then of course we are right back in our case, that the state takes an exception.

Justice William H. Rehnquist: Did your case depend to any larger extent on the perfunctory nature of the judges that review supposing following up the Chief Justice’s question that each judge spent three hours on each juvenile case that the state unveiled to him.

Just considering it and at least as much time as the master has would your legal position be any different?

Mr. Peter S. Smith: No, now the record shows that the judge spends an average of less than one minute on each order and most of whatever is spent in review actually is connection with disposition memos because those are the only cases in which the Court gets disposition memos, but my answer is no.

I think the facts of this case in a way I can get strangled by the facts in this case, if one assumes that my answer to your question was the other way around, that is that it really depends on how much time the master or judge spends with the master’s findings.

We did not put the facts in the case or hopes so that I will get strangled with them.

We put the facts in the case so that this Court would have a good idea of what in fact goes on in the juvenile system in a big city and what in fact this role of a master is so that this Court would realize that the master simply is not some judge's employee anymore.

Justice Byron R. White: Would your case be different if 20 percent of the recommendations were not followed?

Mr. Peter S. Smith: No, it would not.

Unknown Speaker: 90 percent.

Mr. Peter S. Smith: It would not make any difference in terms of whether the judge can retry him if it were 99 percent.

Our legal conception would not be any different. I think that it certainly makes our case factually much more appealing that 99.99 percent are perfunctorily signed off, but I do to think as a matter of theory it makes any difference.

Now if I could turn just for a moment. --.

Unknown Speaker: What is it, if the so perfunctory and also 99.9 percent, why does it worry anybody?

Why this 1983 suit?

Mr. Peter S. Smith: This 1983 suite was brought Your Honor because nine juveniles were found not guilty.

Justice Potter Stewart: You are not saying that in cases where the master finds no delinquency and the state takes exceptions and brings it before the judge, that 99 and a plus percent of those cases, the judge agrees with the masters finding a no delinquency.

You are not telling us that, are you?

Mr. Peter S. Smith: What I am saying is that in 99.9 percent of all matters that are tried in front of the master the judge agrees with him.

Justice Potter Stewart: But your case and my questions earlier threw us off the track and I apologize, your case is a case where the juvenile is found non-delinquent by the master and the state takes an exception and then takes it to the judge and certainly you are not telling us that in 99 plus percent of the cases, the judge agrees that there is no delinquency, are you?

Mr. Peter S. Smith: By all means.

Justice Potter Stewart: I do not think so.

Mr. Peter S. Smith: Absolutely.

Justice Potter Stewart: But that is the only relevant statistic in your case, which is your case presupposes a finding of non-delinquency by the master and exceptions by the state that is your case and that is the only issue you raise.

The issue posed by that factual situation.

Mr. Peter S. Smith: That is correct, but I think that the facts in the record which indicate the relationship between the master and the judge in terms of the number cases, the master hears and what actually happens to those cases and the role the judge plays is not wholly irrelevant, in terms of basically understanding where the system work which is the only point I am trying to make.

Justice John Paul Stevens: But your 99 percent figure includes those which has exceptions at all by either side and which is 95 percent.

Justice Potter Stewart: Which is most of the cases.

Mr. Peter S. Smith: That is correct.

The great bulk of the case is.

Now if I could turn to the law --

Chief Justice Warren E. Burger: This Court occasionally appoints a special master usually it is on a matter of great moment and if there are no exceptions filed, would you say that are rather peremptory adoption of that is rubber stamping and that there is something wrong with it?

You seem to be saying that about the masters over in Baltimore.

Mr. Peter S. Smith: From reading the opinions of this Court, my impression is that the Court does not in fact rubber stamp it, but I think it is a different question Mr. Chief Justice because we are dealing with proceedings that under Gault and Winship and Breed, clearly come under a number of procedural protections to the Bill of Rights and then that is why I think we are here.

If I might for just a minute turn to the law in our case, we are making two points.

The first is that there is a first jeopardy that attaches and that it attaches at the commencement of the master’s hearing.

Now I submit and it is elaborated in our brief that the decision of this Court in Jones v. Breed explicitly so holds, it was the master in Jones v. Breed, jeopardy attached at the start and it is simply not true as the state pointed out that in California, the master or the referee as they call him there has the power to sign an order when a child is committed.

He does not have the power at all, when a child is taken out of the home that must be affirmatively signed by the judge.

Therefore, in our view Jones v. Breed squarely decides the first issue that the state has raised here.

Remember the state has got two arguments, the first is that Jeopardy never attaches at all and therefore there cannot be a second one.

Justice Thurgood Marshall: Until it gets to the judge.

Mr. Peter S. Smith: Now I might say that that represents what the state said in its argument, it represents a change from what it says in its brief.

Its brief does not say that jeopardy attaches when the file from the master goes to the judge.

Rather it says that jeopardy can never attach until on an exception hearing, the judge begins to hear the case de novo.

Which either one we suggest it is not proper and in our view, Breed v. Jones simply decides that first question.

Jeopardy does attach at the beginning of the fact finder’s hearing.

That is the term that has always been used.

This Court in its opinion in Breed v. Jones talked in terms of the risk of punishment and surely when that child --

Justice Thurgood Marshall: You still did not answer my point.

Is there any way that the master can punish these children?

Any way --

Mr. Peter S. Smith: With all respect, the question cannot simply be answered like that?

Justice Thurgood Marshall: But you just said it, I want to test that whether you would stick with it or not?

Mr. Peter S. Smith: Let me stick with it.

Justice Thurgood Marshall: Do you want to say that --

Mr. Peter S. Smith: If by punish, you mean that child going off to a training school…

Justice Potter Stewart: In your case, the master has acquitted them so the question does not arise.

It is important.

Mr. Peter S. Smith: Precisely.

In our case.

Justice Potter Stewart: You better stick to you case.

Do not let us throw you off but let us get back to your case.

Mr. Peter S. Smith: If I can continue for just a moment, as I believe I am correct that this Court in Breed v. Jones settles the question that because there is a risk of conviction, not conviction and punishment but a risk at the start of the master’s proceeding that jeopardy does attach, that only leave one other question and question is whether a second jeopardy attaches for purposes of the Double Jeopardy clause when the matter goes before the judge.

Chief Justice Warren E. Burger: When a grand jury returns an indictment, a risk arises of conviction does it not? Some apprehension arises on the person indicted?

Mr. Peter S. Smith: That is correct Your Honor but that is not what we have here.

I agree that that would not be Double Jeopardy at all.

It does not involve jeopardy.

Justice Potter Stewart: You have it where a grand jury is ignored a true bill.

It has not indicted somebody.

Mr. Peter S. Smith: I think we have more than that.

We had a trial.

Justice Potter Stewart: If there is an analogy, you have a case where a grand jury has not indicted somebody after a hearing.

Mr. Peter S. Smith: Alright if you draw the analogy to the grand jury.

Mr. Peter S. Smith: It controls the first half of the case, it does not control the second half, which is where I would like to spend the next couple of minutes.

Unknown Speaker: You have emphasized the size of Baltimore city but I understand your argument to be an attack against the entire system.

But this case have come up from Denton for example, or Fredrick, you would be making the same argument would you?

Mr. Peter S. Smith: If a master, as is generally not used in the outlying smaller jurisdictions but if they were --

Unknown Speaker: Other than Baltimore.

Mr. Peter S. Smith: Yes, they are used in all of the major metropolitan counties except for Montgomery county although they are being phased out this July in Prince Georgia but they tend to be…

Unknown Speaker: Where they use in the county where you have one master and one judge? Do you still attack the system?

Mr. Peter S. Smith: That is correct although, I might say that the parties in this case involve -- plaintiffs in Baltimore city and defendant state’s attorney from Baltimore city.

The second half and the reason what admittedly is not covered in terms by Jones v. Breed is whether there is a second jeopardy that attaches when the case goes before the judge and we think that there is for two different -- alternatively for two reasons, either because the hearing before the master, despite the fact that he has not signed his name is sufficiently final for Double Jeopardy purposes when you consider that it was a trial, when you consider what Double Jeopardy is all about and when you consider the realities of the system, in which case of course, it would be a second jeopardy.

If it is not final, surely, there is only one alternative and that is that it is not final.

If it is not final, we suggest that it nonetheless is a Double Jeopardy because how does it come to be a second trial before the judge.

It comes to be there because the state prevents the matter from going to its logical conclusion, which as we all know is going to be the stroke of a pen and indeed was in several of these cases, the judge mistakenly signed the order early of acquittal.

Instead because the state’s attorney says no, I want another crack, that does not happen.

What happens instead is a new trial before the judge.

Justice John Paul Stevens: Is it not correct the new trial?

Mr. Peter S. Smith: De novo or on the record.

Justice John Paul Stevens: On that point, what is the normal time interval between the master’s conclusion of proceedings for the master and the entry of the order by the judge?

Mr. Peter S. Smith: At least five days has to go by, Mr. Justice Stevens because that is the time that the party has to decided whether he wants to take an exception and normally it would be immediately thereafter if as is virtually always the case written findings and conclusions are waived, so normally the answer would be five days.

When it goes before the judge at the second trial, whether it be on the record or de novo, in our view, that could only be justified by an exception to the normal Double Jeopardy rule.

Obviously, the Ball exception has no application here and nor does the Barkus exception so what we are talking about is the Perez, Denits(ph) exception.

Denits(ph) does not have any application either really so it is the Perez exception.

Our position is that this does not represent manifest necessity to prevent the trial from going to its conclusion because that is exactly what happened.

The state’s attorney prevented it.

Why?

Because he did not like the result.

The master believed the child was not guilty and he wants to goad again before judge.

Justice Potter Stewart: The necessary part of your argument as I now understand it Mr. Smith is that in the line share of cases after a master has recommended a finding of non-delinquency that judge does rubber stamp it.

That has to be part of your argument which you are now making.

Mr. Peter S. Smith: It is part of our argument but if I can just have 30 seconds to conclude this point, if jeopardy did attach the first time, there has got to be some reason for concluding that there is an exception to saying that it did not attach a second time.

The continuing jeopardy doctrine, of course, has been rejected by this Court consistently right up to the present and the only way that we can see that you can say that a second jeopardy does not attach is to claim that its manifest necessity and yet the very heart of this Court’s manifest necessity decisions is that for the state’s attorney to say, I am not satisfied with the result is not manifest necessity.

Thank you.

Chief Justice Warren E. Burger: Very well.

Do you have nothing further, Mr. Nilson?

Rebuttal of George A. Nilson

Mr. George A. Nilson: Briefly if I may use the few minutes to clarify several factual points.

In the colloquy with Mr. Smith the question came up earlier on in his argument about what is said and how it is said by the master at the conclusion of the case.

I would agree with some of the comments which indicated that that does not or may not have a terribly significant bearing on the legal outcome but I think the record clearly establishes that in many cases, the master specifically advises the juvenile that the state does have the opportunity to take exception even where the master does --

Justice Byron R. White: If he says I find you not guilty, he is purporting to exercise of authority he does not have.

Mr. George A. Nilson: He may be overstating.

He does not have the authority.

In fact, whatever he says but I do not think that this Court should be laboring under the impression that in all cases, he overstates his authority because that is not true.

The record indicates that in many instances, the juveniles are specifically informed by the master that the state has the ability to take exceptions to the master’s proposals and when they are not told by the master, they are told by their own counsel because all of the juveniles at these hearings are represented by counsel by and large by the pubic defenders office.

The subject of detention came up and the question of what action the master could take with respect to detention at the time the adjudicatory hearing was over.

The master at that time as at other times does have the authority to order interim detention of the juvenile.

There is nothing special about that time.

There is no special privilege or prerogative that the master has at that time to order detention as opposed to some other time.

Justice Potter Stewart: Having -- found a non-delinquent, the master would not have a case.

Mr. George A. Nilson: Certainly having found him non-delinquent, he is not going to order him detained and that is this case.

Mr. Smith has gone on at great length about the perfunctory nature of the judge’s review of the master’s recommendations.

Again, as it has been pointed out, this case involves cases which go up on exception.

They are heard, they are argued, they are considered extensively by the judges.

They are not perfunctorily reviewed.

The other cases as to which no exceptions are filed, I would urge this Court to the extent that it feels that how those cases were handled to look at page 49 of the Appendix which is the stipulation of judge Karwacki, not as Mr. Smith indicated one minute per case but a minimum of 15 to 20 minutes per case sometimes hours, sometimes listing to the recording, this again, in cases where none of the parties are taking exceptions, not this case.

Mr. Smith also in talking about part one of our argument on the question of when jeopardy attached indicated that the state has changed its position from what it was in the brief and said that in the brief, we referred to the time at which the matter is heard before the master upon the taking of exception.

Yes, that is the way we described it in the brief because perhaps we were making the mistake of focusing at that point on what this case is all about, cases where exceptions are taken.

There is no difference between the state’s position in the brief and at argument.

It is when the case gets before the judge we say that jeopardy attaches.

When an exception is taken, that is when the exception is presented to the judge and the case is heard.

In the other case, in the lion’s share of other cases, it is when the file goes before the judge with the master’s recommendation.